Britain should withdraw from the European Convention on Human Rights

Many ECHR judges never spent a day on the bench in their home countries

What specific benefits accrue to the United Kingdom as a result of our adhesion to the European Convention on Human Rights? It ought to be the most basic question of all, yet it is almost never asked. Most politicians, together with virtually the entire legal establishment, take our continued membership as a datum or given; yet they rarely get round to explaining why it’s so necessary.

The European Convention might once have served a useful purpose. It was drawn up immediately after the Second World War, when there was an understandable determination to secure civic freedoms in countries emerging from tyranny. We can argue about how much the freedom of Europe owed to human rights judges and how much to Nato armies. But even if we accept the importance of the ECHR, why is this a reason for Britain’s continued participation in 2011?

The customary justification is that British withdrawal would “send out the wrong signals”. A secure democracy might be able to afford the luxury of pulling out, runs the argument. But what would British secession say to the Albanians or the Ukrainians?

Not much, I’d have thought. Britain’s abrogation of the Convention might possibly make a small item on the inner pages of Gazeta Shqiptare. It could easily be missed altogether by Uryadovy Kuryer. In any event, its impact on the political development of other nations would be negligible. You could argue that we’d be doing less developed democracies a favour by encouraging them to look to themselves for a defence of basic rights instead of contracting out that task to a foreign panel of manqué politicians.

Let me repeat the question. What advantages does Britain derive from its readiness to implement ECHR decisions?

Some individuals have certainly benefited. IRA terrorists won a number of cases. Illegal immigrants regularly reach for the Convention to overturn repatriation orders. Prisoners have used it to secure their right to have twigs in their cells for use in pagan rituals and access to fertility treatment. And, of course, lawyers have done tremendously well out of it: whole chambers have sprung up, deriving their livelihoods from the growing corpus of human rights jurisprudence.

For the country as a whole, however, the balance is surely negative. It's hardly as though we suffer from a massive breakdown of civic freedoms from which only a foreign court can rescue us. The ECHR degrades our democracy without enhancing our liberty.

So why do all three main parties cling to a code which is deeply unpopular with their constituents and which serves to disempower them as parliamentarians? Some of them, I suspect, privately rejoice in the judicial activism of the ECHR, seeing it as a way to advance an agenda which they fear would be rejected at the ballot box. In most cases, though, there is a far more straightforward explanation: they fret that abrogating the Convention might prejudice Britain’s status as a member of the EU.

It is true that the European Court of Justice and the European Court of Human Rights are different institutions. The first is attached to the EU (which has 27 member states), the second to the Council of Europe (which has 47). Yet the two institutions are not unconnected. The ECJ has for some time drawn on ECHR judgments as precedent, and the European Convention is now officially recognised in the EU Treaties. The two organisations use the same twelve-star flag, and the EU is in the process of formally joining the Council of Europe – to which all its members belong individually. Indeed, as I discovered the other day, the two bodies are linked even in the most literal way: an underground corridor connects the European Parliament in Strasbourg to the ECHR.

In short, it is by no means clear that Britain could walk out of the Council of Europe without also leaving the EU, a prospect which scares most of our politicians witless. For the country at large, however, leaving the EU would be a delicious bonus.